FFM20 v Minister for Immigration - [2021] FCCA 64

FEDERAL CIRCUIT COURT OF AUSTRALIA

FFM20 v MINISTER FOR IMMIGRATION

[2021] FCCA 64

Catchwords:
MIGRATION – Review of a decision of a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – where the applicant has been in immigration detention since 2010 – whether the Delegate fell into jurisdictional error by failing to consider what alternative outcomes were available to the applicant – whether the Delegate fell into jurisdictional error by denying the applicant procedural fairness – whether the Delegate fell into jurisdictional error by taking insufficient, or no account, of findings of fact made in earlier Court and Tribunal decisions concerning the applicant – whether the Delegate’s decision was affected by actual bias – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 32(2)(a), 36(2)(a)-(aa), 46A(2), 55, 189,

196, 473CC, 476, 477.

Cases cited:

ASF17 v Minister for Immigration and Border Protection [2018] FCA 1149.

DSO18 v Minister for Home Affairs [2020] FCA 286.

Hossain v Minister for Immigration and Border Protection [2018] HCA 34.

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.

Mentink v Minister for Home Affairs [2013] FCAFC 113.

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17.

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29.

SCAA V Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668.

Torrens Aloha Pty Ltd v Citibank NA [1997] FCA 77.

Applicant:

FFM20

Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number:

SYG 2887 of 2020

Judgment of:

Judge Humphreys

Hearing date:

17 December 2020

Date of Last Submission:

17 December 2020

Delivered at:

Parramatta

Delivered on:

22 January 2021

REPRESENTATION

Solicitors for the Applicant:

Mr Ginges

Counsel for the Respondent:

Mr Liu

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The name of the Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the Respondent’s costs fixed in the amount of $8,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2887 of 2020

FFM20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant appears to have been born in the Western Sahara in October 1992. The applicant believes he is about 27 years of age. The applicant is apparently stateless. The applicant arrived in Australia as an unauthorised air arrival due to false documentation on 28 January 2010 and was refused Immigration clearance. The applicant has been in Immigration detention since his arrival.
The applicant’s history is complex. At an interview on 9 October 2017, the applicant explained that he believes that his parents were Bedouins who originated from the Western Sahara/North Africa. The applicant’s Safe Haven Enterprise visa (“SHEV”) application indicates that his father was deceased prior to his birth and that at the age of six, the applicant’s mother…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FCCA 64
Decision Date: 22 January 2021

CaseChat Overview and Summary

The applicant, FFM20, sought judicial review of a decision made by a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. FFM20 had been held in immigration detention since 2010. The application concerned whether the Delegate had committed jurisdictional error in their decision-making process.

The central legal issues before the Court were whether the Delegate had erred by failing to consider alternative outcomes available to the applicant, whether procedural fairness had been denied, and whether the Delegate had failed to adequately account for factual findings from previous Court and Tribunal decisions concerning FFM20. Additionally, the Court considered whether the Delegate's decision was affected by actual bias.

Judge Humphreys found that no jurisdictional error had been made out. The Court reasoned that the Delegate had properly considered the relevant matters and had not denied the applicant procedural fairness. Furthermore, the Court determined that the Delegate had taken sufficient account of previous findings of fact and that there was no evidence of actual bias. Consequently, the application was dismissed.

Orders